Questions about engineer linger in fatal Metro-North derailment

At the four-year anniversary of the fatal Metro-North derailment in the Bronx, the Journal News/lohud.com uncovers new information about the engineer and how his lack of sleep could have contributed to the crash.
Seth Harrison/lohud

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A southbound Metro-North train rounds a bend at Spuyten Duyvil in the Bronx as it approaches the station Nov. 25. Four years earler, a southbound train derailed coming around the same bend, killing four passengers.(Photo11: Seth Harrison/The Journal News)Buy Photo

Federal safety investigators say William Rockefeller dozed off at the controls of a speeding Metro-North train in 2013, causing a derailment that killed four, because he was suffering from sleep apnea coupled with a recent shift change that had him working days after years on the evening shift.

Yet in the months following the derailment, the Bronx District Attorney's office and the Metropolitan Transportation Authority Police investigated claims that Rockefeller was up late the night before the early-morning crash and got little sleep, The Journal News/lohud has learned.

On Tuesday, Bronx prosecutors confirmed they probed the allegations after The Journal News/lohud presented them with the findings of its own months-long investigation.

Prosecutors said that in April 2014 they received information indicating that before Train 8808 departed Poughkeepsie around 6 a.m. on Dec. 1, 2013, Rockefeller urged a fellow employee to check on him during the ride into Grand Central Terminal.

“It’s your job to keep me awake,” Rockefeller, who is a Columbia County resident with deep ties to Rhinebeck, told the employee, according to the Bronx District Attorney’s Office.

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Emergency personnel work at the scene of a Metro-North train that derailed just north of the Spuyten Duyvil station in the Bronx Dec. 1, 2013. Four people were killed and dozens more injured when the Manhattan-bound train derailed shortly after 7 a.m.(Photo11: Seth Harrison/The Journal News)

If true, the statement would have factored into the decision on whether to charge Rockefeller with a crime since it could be viewed as evidence he knew he was unfit to operate a locomotive with dozens of passengers.

But, prosecutors say, the employee denied the conversation happened and Rockefeller was cleared of criminal charges in 2015.

The employee was Maria Herbert, an assistant conductor aboard the Hudson Line train who suffered broken ribs and a head injury when she was thrown through the lead car as the train went off the rails along a curve as it approached the Spuyten Duyvil station in the Bronx.

And the account of what may have been said in Poughkeepsie that was shared with law enforcement investigators came from a Metro-North claims agent who said she received the information from Herbert's husband after the derailment.

Metro North Railroad engineer William Rockefeller is wheeled on a stretcher Dec. 1, 2013, after the commuter train he was driving derailed in the Bronx.(Photo11: Robert Stolarik/AP)

In two separate interviewswith The Journal News, Maria Herbert admits she was questionedby both the Bronx District Attorney's Office and the MTA police about the alleged conversation with Rockefeller, but denies it ever took place.

The Hudson Line train derailed around 7:19 a.m. while going 82 mph along a curve where the maximum speed limit is 30 mph. Aside from four who died, dozens more were injured, among them a Metro-North employee who was paralyzed.

Four years ago

As the fourth anniversary of one of the deadliest days in Metro-North history approaches, questions about the events leading up to the derailment continue to dog the commuter rail as it tries to move ahead with a series of reforms meant to prevent such a thing from happening again.

The railroad has already paid out at least $32 million to settle legal claims filed by injured passengers or the estates of those who died.

And a Journal News/lohud investigation published in September revealed that in 2005, after an engineer sped through the same Spuyten Duyvil curve, a ranking Metro-North official urged his bosses to install a backup safety system that would slow trains automatically. Former Metro-North road foreman Joseph Riley said his concerns were shot down by bosses who feared such a fix would have a negative impact on on-time performance.

“They should release every detail of every investigation that they’ve done from the beginning,” Montgomery said. “My family and I and the victims should have that. All we have is what everyone else has. We’re kind of standing here like dopes. Give me the truth. I don’t need you to sign off on a settlement and not give me the truth. We deserve it.”

Some nine months after being told about the alleged conversation in Poughkeepsie, Bronx prosecutors cleared Rockefeller of criminal charges.

They say the employee, whom they did not identify, denied hearing him say that.

Emergency workers at the scene of the Dec 1, 2013, derailment in the Bronx.(Photo11: File photo by Timothy Clary/AFP/Getty Images)

“This information was investigated but was not substantiated; the employee denied that she ever heard Rockefeller say that and denied that she ever told anyone that she heard him say that,” the statement added.

Rumors of Rockefeller’s doings the night before the derailment have circulated through Metro-North for years, reaching the highest ranks of the commuter rail.

And the buzz has gotten louder over the past year, ever since Rockefeller surprised many inside the railroad agency by filing a $10 million federal lawsuit against his former employer on the third anniversary of the derailment.

Now questions about that long-ago conversation and whether it even occurred threatens to undercut Rockefeller’s legal claims against the railroad by suggesting his own decisions — coupled with an undiagnosed case of severe obstructive sleep apnea — sealed the fate of Train 8808.

Rockefeller's $10 million claim

The central claim of Rockefeller’s lawsuit is that Metro-North is responsible for the crash for failing to install the backup safety system that would have put the brakes on his speeding train when he fell asleep.

Metro-North declined to comment directly on whether it was aware of what Rockefeller is alleged to have said to another employee.

“Any information in this regard that may have been received by Metro-North was provided to the District Attorney, and federal investigators while their investigations were ongoing,” Metro-North spokesman Aaron Donovan said. “Metro-North declines to comment further as there is active litigation concerning this matter.”

Last year, Rockefeller was awarded a $3,200-a-month lifetime disability pension by the Metropolitan Transportation Authority, Metro-North’s parent agency, in addition to a federal railroad retirement pension.

“Out of respect for the families who lost loved ones and the scores of individuals who suffered injuries in the derailment, I will not be litigating Mr. Rockefeller’s claim against Metro-North in the media,” Maurer said. “I am certain that a trial jury, who will consider all admissible evidence, will render an appropriate verdict when the time comes.”

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A southbound Metro-North train arrives at the Spuyten Duyvil Metro-North station in the Bronx Nov. 25, 2017. Four years ago, a southbound train derailed coming around the same bend just before the station, killing four passengers. The train that derailed was traveling at over 80 mph when it left the tracks, far faster than it should have been travelling. (Photo11: Seth Harrison/The Journal News)

Attorney Jeffrey Chartier, who represented Rockefeller in 2013 when he was facing possible criminal charges, said he heard the rumors about the conversation and conducted his own investigation.

“Whether she (Herbert) said that or not I wasn’t present so I can’t speak to that,” Chartier said. “I can’t say whether she said it or not. I don’t know. I can tell you the factual portion is 100 percent false."

The National Transportation Safety Board’s report on the derailment noted that on Nov. 18, 2013, some two weeks before the derailment, Rockefeller’s shift was changed. After two years of starting in the late afternoon or evening, Rockefeller’s shifts were now beginning around 4 to 5 a.m.

He was going to bed around 8 p.m. and waking at 3:30 a.m., the report notes.

“Given the substantial shift in work schedules and the varied sleep/wake times it is likely that the engineer had not adjusted fully to the new work schedule at the time of the accident,” the NTSB report notes.

It said the previously undiagnosed obstructive sleep apnea, together with his “incomplete” adjustment to a new work schedule, left him fatigued.

In his Dec. 3, 2013 interview with NTSB investigators, Rockefeller said he woke at 3:30 a.m. on the day of the derailment, took a shower, fed his cats and then drove 43 minutes from his home in Germantown to Poughkeepsie, arriving after 5 a.m.

He made nine station stops, including the last at Tarrytown before departing for Spuyten Duyvil around 7:02 a.m. The last time he touched the throttle was around 7:14 a.m., the Federal Railroad Administration report says.

He described for investigators how he felt around Riverdale, shortly before the derailment. “I was dazed, you know, looking straight ahead, almost like mesmerized,” Rockefeller testified. “And I don’t know if anybody’s ever experienced like driving a long period of time in a car and staring at the taillights in front of them, and you get almost like that hypnotic feeling staring straight ahead….”

He recalled deploying the emergency brakes when the train shook him out of his dazed state, he added.

Assistant conductor defends engineer

Maria Herbert denied Rockefeller ever said anything about being tired before boarding the train when interviewed by The Journal News/lohud.

She said she was questioned about information that Metro-North claims agent Elise Devine gave to MTA Police at a police station in Beacon after she was released from the hospital.

“She (Devine) said that I told her that Rockefeller was too tired to run the train and that’s not true,” Maria Herbert said. “I just said good morning to the guy and went about my business.”

In an interview with the NTSB three days after the accident at Presbyterian Hospital in Yonkers, Herbert recalled saying good morning to Rockefeller but said she did not notice anything unusual.

Herbert, 49, of Wallkill, has been unable to work since the accident, which left her with post-traumatic stress syndrome and a traumatic brain injury. She struck her head when she was thrown through the car and broke two ribs.

In November 2015, Herbert settled her lawsuit against Metro-North for at least $835,000 during a trial in Manhattan federal court.

From the witness stand, Herbert told jurors she felt “betrayed” by Metro-North for its failure to install the back-up safety system, a claim identical to the one Rockefeller’s attorneys make in his lawsuit.

Metro-North conceded its liability in the case, as it has in many of the cases that have settled, and so the issue of why the derailment occurred did not come into play. The jury in Maria Herbert’s trial only decided how much compensation she should receive for her injuries.

Her husband, William Herbert, a former Metro-North employee, said he spoke to Devine after his wife was injured because she is a family friend and wanted to find out more about his wife’s injuries. As a claims agent, Devine’s job is to investigate and assess injuries that may lead to claims against Metro-North. The railroad is self-insured.

“So I called her (Devine) up first thing because she’s a claim agent,” William Herbert said. “What do I do? Where’s Maria?’ And she told me where she was and that was it. And then I find out that she said that and it’s kind of heartbreaking. That’s a big betrayal.”

Devine could not be reached for comment. Through Donovan, she declined a request for an interview.

Maria Herbert defended Rockefeller and said she empathizes with him for what he’s gone through.

“It’s not that kid’s fault,” she said. “Gee whiz no. What if he had a heart attack? What if he had a stroke? It had nothing to do with the crew. This was all Metro North’s fault. FRA investigated even what we did that day. They couldn't find anything wrong on us. We did everything right.”